By Andrea Sumits
Law360 (April 4, 2019, 1:59 PM EDT)
Starting July 1, 2019, apartments and other residential rental properties will be subject to new Prop 65 warning requirements. Final approval of the proposed rule was received on March 12, 2018. The ubiquitous warning signs posted around apartment complexes may soon become history, as Prop 65 warnings will be incorporated into the actual lease agreement and other documentation instead. While reducing signage is a welcomed change, as is greater certainty regarding the specific warning language to be used by building owners and landlords for safe harbor protection under the law, the new rule remains ambiguous on several key points.
The basic requirements of the new rule include:
“Residential rental property” is defined to include an apartment, house, duplex, triplex, condominium or any other dwelling rented to tenants to live in;
If a warning is required by Prop 65 (i.e., if an exposure would exceed safe harbor levels), warnings must be given to the tenant and all “known adult occupants” and “to other tenants and occupants” at the time of renting or leasing the property, as well as annually thereafter;
The initial warning may be provided by: (1) a letter addressed to each known adult occupant, and to “tenants and occupants” and delivered to the property; (2) an electronic message sent to each email address used to communicate to known adult occupants and to other tenants and occupants; or (3) in the lease or rental agreement (this method only covers known adult occupants who sign or are named in the lease);
After the initial warning, the subsequent annual warnings may be provided by any of the same three methods. If provided in the lease or rental agreement renewal, it only covers those people who sign or are named in the agreement;
If the lease documents or any other disclosures or required notices from the landlord are provided to residents in any language other than English then the Prop 65 warning must be provided in those languages as well; and
Residential rental properties with enclosed parking facilities and/or designated smoking areas must also provide the specifically tailored Prop 65 warning signs at those areas (note – these areas still require posting of physical signs).
The content of the new safe harbor warning for residential rentals is:
Variations of the above warning are provided in the new regulations for situations involving only a single listed carcinogen or reproductive toxicant, or multiple chemicals but in only one endpoint category or the other. The OEHHA’s Statement of Reasons offers six examples of sources of exposure and listed chemicals they would expect to be more commonly encountered and show language that OEHHA would deem as meeting the clear and reasonable safe harbor standard. These include lead from plumbing materials, lead-based paint, or vinyl mini-blinds, asbestos from ceiling coatings (if it becomes damaged or disturbed), carbon monoxide from fireplaces or unvented gas space heaters, and formaldehyde from certain building materials.
The sticky issues that landlords are left to navigate under the new rule include:
The new rule provides that the landlord may deliver an initial warning letter to new tenants and occupants at the property – does this alone suffice in the absence of warnings in the lease given that the new tenants do not live at the property until after the lease has been signed?
Landlords frequently provide certain required notices in multiple languages, some of which may be irrelevant to a particular tenant – does the landlord need to provide the Prop 65 warning in all of those languages to all tenants?
Are there timing requirements for the annual warnings that follow the initial warning? Does the annual notification need to be given within twelve months from the initial lease date? Or may a landlord provide all such annual notifications at the same time to all tenants, even if that may mean that there has been a period of time exceeding 12 months before the warning is received for some tenants?
Are there benefits of also including the warning in the lease agreement if a landlord opts to send a letter or email warning to cover the “other tenants and occupants”?
Is there risk associated with removing warning signage in areas where visitors and guests may be exposed to listed substances, such as swimming pool and spa areas?
Which chemicals and sources of exposure should a landlord select for inclusion in the warning, if the specific examples provided by OEHHA do not apply at a property?
In the final statement of reasons, OEHHA states that “each property owner should evaluate what, if any, exposures may occur at their property that may require a warning.” What is an appropriate “evaluation” by landlords to determine what exposures at the property require warnings?
Given that the new rule directs tenants to ask their landlords for more information, how should landlords answer questions from tenants regarding the new warnings?
Owners and landlords of residential rentals, with advice from their legal counsel, should start now implementing needed changes to ensure compliance with the new requirements by July 1.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Andrea P. Sumits is a Partner at Environmental General Counsel. She handles a wide range of environmental and health and safety matters including Prop 65. She advises companies in the consumer product, commercial office, retail, residential, industrial, and hospitality sectors on compliance with Proposition 65, and represents clients in Proposition 65 enforcement actions.
510-495-1409 - ASumits@egcounsel.com
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